Irish Judge Slaps Down Facebook's Attempt To Halt EU's Top Court Examining The Legality Of Sending Personal Data To US

from the unquantifiable-and-incapable-of-being-remedied dept

A few weeks ago, we wrote about the Irish High Court referring to the EU's highest court, the Court of Justice of the European Union (CJEU), eleven questions concerning the legality of personal data transfer across the Atlantic.The questions were prompted by a case brought by the privacy expert Max Schrems challenging Facebook's data transfers. When the Irish High Court judge indicated that she intended to make an order for a so-called "preliminary ruling" by the CJEU -- that is, one which addresses the fundamental legal questions raised by the case -- Facebook applied for a stay in order to appeal against the judge's decision at other, higher Irish courts. That's hardly surprising: Facebook's business model depends on being able to move sensitive user data around as it wishes. If both Privacy Shield and the "Standard Contractual Clauses" (SCCs) are ruled illegal, then Facebook -- and many other companies -- will have big problems. Given the danger, it's no wonder that Facebook is trying everything it can to prevent the CJEU from answering those questions.

Considering Facebook's application, the same High Court judge who had made the reference to the CJEU explained that in her view (pdf) there is no right to appeal against that request for clarification under Irish law. However, she went on to consider what the relative harms to each party would be if she were in fact wrong on this matter, and came down firmly in favor of Schrems:

In my opinion, the very real prejudice is potentially suffered by Mr. Schrems and the millions of EU data subjects if the matter is further delayed by a stay as sought in this case. Their potential loss is unquantifiable and incapable of being remedied.

The High Court judge also tackled Facebook's main argument why the reference to the CJEU should be put on hold: because the EU's new General Data Protection Regulation (GDPR) was about to be enforced, and that would change the legal context dramatically. However, the judge was having none of this, not least because Facebook was trying to introduce a completely new argument at this very late stage of the legal process. As she wrote in her judgment:

The fact that the point is only now being raised gives rise to considerable concern as to the conduct of the case by Facebook and the manner in which it has dealt with the court.

This is the judge's polite way of saying that Facebook's behavior is bloody outrageous. She goes on:

Clearly the existing delays have already potentially gravely prejudice[d] the [Irish Data Protection Commissioner] and Mr. Schrems. I do not propose to exacerbate this potential prejudice any further. If I had been prepared to grant a limited stay on the order of reference to allow for an application to be made to the [Irish] Supreme Court for leave to appeal, I am firmly of the view that this argument clearly weighs against the grant of any stay in the circumstances.

I am of the opinion that the court will cause the least injustice if it refuses any stay and delivers the reference immediately to the [EU] Court of Justice. I so order.